JAMES MUTUA MAWATHE, OMONDI FREDRICK OUMA, KENNEDY ODIWUOR, SAUL ALUBALA AMBOYE, SAMSON MUNGAI MWANGI, ASSEMBLY CHRISTIAN CHURCH & KARIOKOR CHURCH OF GOD V. ATTORNEY GENERAL & COUNTY GOVERNMENT OF NAIROBI

RULING OF THE COURT

In an application under Rule 5(2)(b) of this Court’s Rules, it is trite that the applicant must demonstrate that the appeal he has presented or intends to present raises arguable points; and secondly, that the appeal or the intended appeal would be rendered nugatory if the interim orders were to be denied. In applying those principles, the Court exercises unfettered original and discretionary jurisdiction. In considering whether an appeal is arguable, it is sufficient if a single bona fide arguable ground of appeal is raised. An arguable appeal is not one which must necessarily succeed, but one which ought to be argued fully before the court; one which is not frivolous. An applicant must satisfy both principles.

While considering an application brought under Rule 5(2)(b), the Court must not make definitive or final findings of either fact or law. The principles and the foregoing factors were succinctly presented in Stanley Kangethe Kinyanjui v. Tony Ketter and 5 othe…